The Kuala Lumpur High Court today granted a stay of deportation to terror suspect Mohamad Iqbal A Rahman, pending a decision on whether it can question declarations that Iqbal is an "undesirable immigrant".

Judicial commissioner Wan Afrah Wan Ibrahim granted the stay, after Senior Federal Counsel Umi Kalthum Abdul Majid stated she had no objections.

The stay will be in effect on Nov 11 until the court delivers its decision on Iqbal's application for leave to challenge the declarations.

This development is of particular significance to Iqbal because it has been ascertained that a deportation order was issued against him as of Sept 25 by the immigration department.

Neither Iqbal - who is currently being held at the Ajil detention camp in Terengganu - nor members of his family ( right ) were present in court today.

Iqbal, a former religious teacher who became a permanent resident here in 1985, was among the first batch of suspected Kumpulan Mujahidin Malaysia members detained in August 2001 under the Internal Security Act.

Days before expiry of the two-year detention order, the 46-year-old Indonesian national was informed that he faced imminent deportation following the revocation of his PR status by immigration authorities.

The Home Ministry, in declaring that Iqbal was an "undesirable immigrant" had said that it had reasons to believe that he had been involved in activities against Malaysia's national interest.

Burden of proof

Resuming her arguments in the case which began on Monday, Umi reiterated that Section 59 and 59(a) of the Immigration Act precluded the court from judicial review of any act done or decision made by the Home Minister of Director-General (DG) of the immigration department unless it concerns compliance with procedural requirements.

Under the same provisions, she said neither the minister nor the DG are required by law to give the right to be heard to the applicant.

She also defended the DG's decision to revoke Iqbal's PR status, saying that it was incumbent on the official to do so by law following a declaration by the Home Minister that the applicant is an "undesirable immigrant".

"The DG had well adhered to provisions under Section 8(1)(a) of the Immigration Act or adhered to procedural requirements. The declaration made by the DG is therefore not flawed and cannot be challenged," she said.

Responding to a contention by the applicant's lawyers on Monday that Iqbal ( photo ) had the right to discharge a burden of proof that he is not an "undesirable immigrant", Umi said the provision applied only to a prohibited immigrant seeking to enter Malaysia and not one already in the country.

"This section does not apply to (Iqbal)...(but) the DG had informed the applicant that he may appeal to the Minister. He has already been given the opportunity to rebut," she said.

Fundamental right

Iqbal's lawyer, Amer Hamzah Arshad, told the court that provisions ruling out judicial review of the declarations cannot be applied in this case as they are in contradiction with basic freedoms enshrined in the Federal Constitution.

"In this case, it affects the applicant's fundamental right to liberty," he said.

Amer said such fundamental rights can only be set aside if an amendment to this effect is made in the Federal Constitution.

Lawyer Edward Saw further submitted that the government had followed an erroneous procedure in revoking Iqbal's permit as the provisions used against him were applicable only to persons seeking to enter Malaysia and not those who are already in the country.

For persons who are in already residing the country, argued Saw, another provision applies which does not give the Home Minister any powers to make any declarations.

"The power to cancel a permit rests with the DG alone. The minister has no power whatsoever to make any declarations," he said.

"The minister and the DG therefore committed an error of law and since a decision-maker has no jurisdiction to make an error of law, it is our submission that they had acted in excess of jurisdiction."

Saw cited a local legal precedent that, in cases where an applicant is able to demonstrate unlawful treatment, it would be wrong for any authority to insist that he exhaust his statutory right of appeal.

Rather, the applicant should have access to the quicker and more adequate remedy of a judicial review.